October 2009 will see the arrival of the biggest change to the UK court system in recent judicial history. The replacement of the House of Lords by the Supreme Court was introduced by the Constitutional Reform Act 2005 (the Act), although at the time the news was overshadowed by the abolition of the role of Lord Chancellor. However, despite its failure to gain traction with the media, any change to the highest court in the land is bound to have an impact. The Government argues that the change will introduce increased independence and transparency. This article will consider the key changes and assess whether the aims of the Government are likely to be achieved.
The Supreme Court will be housed in a new building just off Parliament Square, and will remain the final court of appeal in the UK for all bar a few Commonwealth cases, which will remain under the jurisdiction of the Privy Council. It will only hear cases with a wider public interest, and therefore, its role in developing UK laws will continue. However, unlike its US counterpart, the Supreme Court will not be able to strike down legislation.
The Supreme Court will have its own set of rules and practice directions which are set out in the Supreme Court rules 2005, although details have not yet been published (a Statutory Instrument is expected to be laid before Parliament soon). Whilst new rules are being created specifically for the UK's highest court, there is a danger that increased red tape will increase the cost to parties litigating in the Supreme Court.
The judicial appointments process has been updated to improve transparency. Section 27 of the Act sets out the new appointment process. Although it is not yet in force, the selection commission is currently following the process voluntarily. Relevant posts have been advertised publicly and applicants are reviewed by the two most senior Law Lords and members from the Judicial Appointment Commissions for England, Scotland and Northern Ireland.
Separation of Powers
Under the current system, the Law Lords sit in the legislative House of Lords, the second chamber of Parliament. This obviously provides some cause for concern as they are members both of the legislature and judiciary. The new Justices of the Supreme Court (as the Law Lords will be known) will not automatically join the Lords, thus preserving the separation of powers. However, the existing Law Lords will remain peers until they retire, although they will be disqualified from sitting or voting in the House of Lords. By convention, Law Lords have excused themselves from sitting or voting on most issues. Therefore, some critics have suggested that the only problem addressed by this radical (and costly) change is one of perception.
Costs and Funding
The costs surrounding the introduction of the Supreme Court have been considerable. Although figures vary, the total cost has been estimated at £100m with annual costs of £8m. The running costs of the judicial House of Lords are said to be below £1m per year.
While previously funding was obtained directly from Parliament for the House of Lords, the budget for the Supreme Court will be decided by the Ministry of Justice. A Chief Executive has been appointed to run the Supreme Court and part of her responsibilities will include negotiating the budget, whereas before, Parliament would rubber stamp the budget for the House of Lords. Under this new system, there is a danger that the involvement of the Ministry of Justice may introduce politics into the issue of costs.
The new Supreme Court will bring a fresh spirit of change to a body that is renowned for traditionalism. However, it is not certain that the change will increase independence or transparency. With the Ministry of Justice holding the purse strings, political intervention poses a threat to independence where it did not exist before. Efforts have been made to improve transparency, but the perception of the public will not change overnight.
The separation of powers may improve the perception of the judicial system in the UK, but it is not certain that it will achieve any concrete improvements. The costs of the change are extraordinarily high and the Government is likely to be asked "why fix what isn't broken?", especially given the current recession.
Although there is no doubt that the judiciary in the UK is independent, and regarded so globally, it could benefit from being perceived to be more open by the public. If this can be achieved while maintaining its standard for excellence, history may judge the money to be well spent.